St. Louis Southwestern Ry. Co. of Texas v. Powell

• Decision Date: 02 May 1923
• Docket Number: (No. 2736.)
• Citation: 252 S.W. 268
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. POWELL.
• Court: Texas Court of Appeals

252 S.W. 268

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. POWELL.

(No. 2736.)

Court of Civil Appeals of Texas. Texarkana.

May 2, 1923.

Rehearing Denied May 17, 1923.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Action by Wesley H. Powell against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

December 15, 1920, appellee, a brakeman on one of appellant's freight trains, had his foot so mashed, in an effort to couple cars, as to necessitate the amputation of his leg just above the ankle. This suit by him for damages resulted in a judgment in his favor. The circumstances of the accident resulting in the injury to appellee, it appeared from testimony the jury had a right to believe, were as follows: A car loaded with cotton was to be moved from a spur track to another track in appellant's yard at Mt. Vernon. To accomplish that it was necessary to couple another car to the cotton car. It was appellee's duty to make the coupling. He adjusted the coupler on the cotton car and then signaled the engineer to push the other car against it. The cars failed to couple when they came together. They moved apart, and appellee signaled the engineer to push the other car back. The engineer did so, but the cars again failed to couple when they came together. When they again moved apart (a distance of about four feet) appellee went between them to ascertain why they failed to couple, and discovered that the lock block of the coupler on the cotton car had become disconnected from the list rod or lever. As, therefore, the block could not be raised by the lever, and the coupling could not be made until it was raised and adjusted, it was necessary for appellee to go between the cars and lift and adjust the block with his hands. He did that, and had placed his foot against the coupler to shove it to the position he thought it should occupy when the other car moved back against the cotton car. At the instant of the impact between the cars appellee's foot slipped from the coupler on the cotton car and was caught between it and the coupler on the other car. Appellee testified he did not signal the engineer to push the other car back, and what caused it to move back was not clear in the testimony. The jury found on special issues submitted to them: (1) That the cars appellee undertook to couple were not "equipped with couplers coupling automatically by impact and which could be coupled without the necessity of a man going between them"; (2) that the failure of appellant to have them so equipped was the proximate cause of the injury appellee suffered; (3) that appellee was "guilty of negligence in going between the cars and undertaking to shove the coupler with his foot at the time and in the way he did"; (4) that his negligence did not "proximately cause," but did "contribute to cause," the injury he suffered; and (5) that appellee was damaged in the sum of $15,000. The jury made other findings which are regarded as of no importance in disposing of the appeal.

B. F. Crosby, of Greenville, for appellant.

Evans & McCoy, of Greenville, L. Dillard Estes, of Commerce, and Chas. L. Black, of Austin, for appellee.

WILLSON, C. J. (after stating the facts as above).

By the terms of the "safety appliance" statute applicable (article 6710, Vernon's Statutes), it was unlawful for appellant —

"to haul or permit to be hauled or used on its line of railroad within the state of Texas, any locomotive, tender, car or similar vehicle employed in moving intrastate traffic within the said state which is not equipped with couplers, coupling automatically by impact, and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, cars and similar vehicles."

As we understand the testimony it was amply sufficient to support the finding of the jury that the cars were not equipped with couplers which could be coupled without the necessity of any one going between them. That finding showed that appellant had violated the statute, unless it should be construed, as appellant insists it should be, as requiring no more of it than that the cars should be equipped with couplers which would couple automatically by impact after the couplers had been properly adjusted by some one going between the cars for that purpose. It is settled, we think, contrary to the contention of appellant, that the statute, like the one enacted by Congress (article 8606, U. S. Comp. Stat.), means what its language imports, to wit, that cars used by a railway company must be equipped with couplers which will couple automatically by impact without the necessity of any one going between them to adjust the couplers or for any purpose. Ry. Co. v. Wagner (Tex. Civ. App.) 166 S. W. 24; ...